TRIPS and Plain Packaging of Tobacco Products

TRIPS is short for ‘Trade Related aspects of Intellectual Property rights’. It is in the nature of a treaty. It is an agreement signed by almost all nations designed to facilitate trade between nations, one aspect of which is use, registration and protection of trademarks. From something that I was reading, I got a link to an article justifying the Australian prohibition of the use of the trademarks which are the intellectual property of tobacco companies. It is long and complex, but I’ll give the link to it anyway:

http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1815&context=auilr

The article was written by three Australian professorial types and published in an American legal journal. The article purports to justify the OZ prohibition of the use of trademarks.  It says little about standardised packaging in general.

The article makes a big play of the idea that the USE of trademarks is a ‘privilege’ and not a ‘right’. It agrees that trademarks can be registered and protected, and that tobacco companies havethe RIGHT to own trademarks, but claims that the TRIPS treaty does not guarantee that nations will allow the use of such trademarks.

This idea of ‘privilege’ in not in the treaty as far as I can see. I have not seen that word used in the many quotes from the treaty by the author of the article. The idea was invented by someone else named Wesley Newcomb Hohfeld. Thus we see the usual ‘appeal to authority’.

I can’t remember what aspect of PP caused the tobacco companies to go to court in Australia, and it is too late a night for me to be bothered looking it up. I seem to recall that the Judge there said that the OZ government had not ‘stolen’ the trademarks since had no intention of gaining any benefit (financial?) from banning their use. Was the tobacco company claim in the court about compensation or was it that the ban on trademarks was illegal? I forget. Anyway, the Judge opined in favour of the OZ government.

Although the TRIPS dispute also involves ‘ownership’ of trademarks, that is not the main dispute. That dispute revolves around whether or not the OZ government, in signing the treaty, guaranteed that it would not interfere in the USE of trademarks. The authors of the article take the TRIPS agreement wording apart to show that it does not provide such a guarantee.

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I must admit that I see the logic of the position. For example (and the authors point this out), what would be the TRIPS position if OZ prohibited the sale of tobacco products? (In fact, they already do so, if you consider nicotine containing ecig juice as a tobacco product)

But perhaps we should consider a comparison.

Suppose that, for decades and decades, a country had imported or allowed to be built and sold in that country, a certain type of car. Suppose that that car was always painted in certain colours, say, red on the top, blue at the front and yellow on the sides, and suppose that it had a logo on the sides and its name, painted in gold on the front and the back. And suppose that that country had agreed, by international treaty, that it would not unjustifiably stop the car company from painting its cars in that ‘livery’. Suppose then that the country suddenly says, “You can no longer sell your cars with those colours and with those other pictures. In future, you can only sell those cars if they are painted black, have pictures of dead bodies torn to bits in car crashes covering 75% of surface, but you can put the car’s name on the car, but only on the front and the colour of the name must be grey and only 2 centimetres high and wide”. Would we say that that country has complied with its obligations under the treaty?

I would hope that most people would say, “No – absolutely not”. That does not mean that the country has not got the right to insist upon its decisions. It does have that right without doubt, but you have to ask what the consequences of that decision are as regards international trade. For example, suppose that several countries decided to do the same thing regarding Australian wine – ALL Australian wine, not just one specific company’s wine. Those countries could claim that they are not discriminating because they ‘ban’ ALL Australian wines. They might have a good reason to do so, if, for example, OZ attacks a product of their country – such as tobacco, or cars, or pasta. You see, I don’t think that the OZ argument that they do not discriminate since the PP law applies to ALL tobacco products holds water. OZ no longer has a tobacco industry, therefore, as regards international trade, it is discriminating against all countries which produce tobacco products. In those circumstances, I would say that a trade agreement about trademarks would imply that it is the producing country which should control trademark registrations and use. OZ can either ban the import of ALL tobacco products or comply with its treaty obligations.

All the niceties of that article and its convoluted arguments matter not one jot. Essentially, the reason for the treaty was to ensure that trademarks recognised in one country would be respected in another. Essentially, what the government of OZ has done is demolish the trademarks of a product which another country has guaranteed. It has substituted its own ‘trademark’, which consists of medical porn.

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I am no lover of tobacco companies, nor do I hate them. As far as I am concerned, they simply supply to a demand. I know for a fact that some of them are now using expanded tobacco for cigs. Those cigs burn down rapidly, especially in the open air. The reason is that the tobacco is, in effect, ‘frozen’ (using a gas) and therefore caused to expand. When the gas is allowed to escape, the tobacco remains expanded. Thus, the volume of tobacco, and so its weight, in a cig is reduced. People who use RYO do not suffer from this form of theft since they buy their tobacco by weight. Where are the authorities protecting smokers from this kind of guile? There are none. There are no provisions in the EU Tobacco Directive which protect smokers against inferior tobacco. In fact, the directive promotes inferior products.

There is a terrible stench. In view of the ongoing disputes about PP, why have the Governments of the UK and Ireland committed to it? Actually, we know why. It is because such things are too mundane for Prime Ministers to bother about, and the hidden government, the likes of Andrew Black, are the people who are really in control of such matters. Thus, Ireland and the UK have gone for PP purely to support the Zealots in OZ in the TRIPS dispute.

It has nothing to do with health and everything to do with power.

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Something that amazes me is that tobacco companies have not defended themselves. Despite the WHO gagging, they could have defended themselves. But, at every point, they have appeased. For example, they could have said that, collectivity, as an industry, they would not put up with their ability to provide their customers with assurance of the quality of their tobacco being compromised. It may be true that all tobacco smoking is equally dangerous, but that does not mean that there cannot be differences between the quality, in terms of the presence of dirt and muck and tar, of one product and another.

Thus, they could be justified in withdrawing their products from Australia. Or rather, they could have said that they would supply the OZ Government with products in their trademark livery, and  it is up to the OZ government to repackage them. Thus, the costs would be transferred to the Zealots. All along, the demands of the Zealots have been transferred to smokers and taxpayers in general.

I don’t understand. As I understand it, the Chinese government controls the supply of tobacco products and makes a mint out of it. So, the OZ government should be well pleased to accept an offer from tobacco companies to supply it with tailor-made cigs for it to supply its state controlled tobacconists. Spain has something like that, but without state control of supply and demand. Tobacco can only be sold in approved outlets, but there is no Zealot interference. It is a commercial matter. To some extent, shops which had a prior history of selling tobacco products were permitted to continue to do so. The prices seem to be fixed, but ‘special offers’ such as a small bottle of brandy, attacked to, say, 400 cigs are OK. There are differences in prices, but not a lot. It seems that all tobacconists have to sell their wares at whatever price is determined. That is, they cannot compete with each other on price. Thus, 20 Benson and Hedges might cost €4.50 whereas 20 L & M might cost €4.20, but all tobacconists charge the same price. That is the way it seems to be.

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It still amazes me that Cameron et al permitted the PP Act so close to the election. Why get involved in an expensive and, ultimately, totally useless dispute about TRIPS? Sometimes, I think that the likes of Cameron become besotted with their ‘appearance’ on the world stage. It is all about their make-up rather than the play in which they are appearing, plus, of course, ‘the play’ is just a theatrical event which has little to do with reality.

Would it not be wonderful if the tobacco companies pulled out of Australia and called the Zealots’ bluff? We will supply you with cigs in our livery. You can do what you want with them. Or you can get your cigs from China, if you wish.

Bluff called – smokers incandescent – voters incandescent.

There is no war. There is only appeasement and jockeying for position.

—-

The answer for us who enjoy tobacco is to wait and see, since it is obvious that tobacco control must destroy itself as a result of the fact that it has no end point. Even if it got tobacco banned everywhere, it would need to reinvent itself, otherwise it would die.

As I said yesterday, I do not hate the commenters here and there who say that they wish that smokers would die in agony. I pity them and despise them.

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14 Responses to “TRIPS and Plain Packaging of Tobacco Products”

  1. michaeljmcfadden Says:

    “they could have said that they would supply the OZ Government with products in their trademark livery, and it is up to the OZ government to repackage them. Thus, the costs would be transferred to the Zealots. All along, the demands of the Zealots have been transferred to smokers and taxpayers in general.”

    Well stated and excellent point Junican!

    – MJM

    • junican Says:

      Well thank you, kind sir!
      There would have been a problem, of course. Would TobComs be acting as a cartel? I suppose that they would, although the ‘lack of financial gain’ argument, which the OZ government employed would act in reverse, wouldn’t it? The TobComs could say, “We gain no financial advantage, and so we have a right to act together in our collective interest – the protection of our individual trademarks. If the Australian government want to buy our products for distribution there, we will supply them at the normal, wholesale price. But they will be branded, as usual. It is up to the OZ gov to decide what to do with them. Or, they could get such products from elsewhere”.

  2. Ed Says:

    “Even if it got tobacco banned everywhere, it would need to reinvent itself, otherwise it would die.”

    Isn’t that essentially what we’re seeing happening with vaping plus the subtle pushing of a myriad of nicotine and nicotine analogue drugs by big pharma?

    I noticed an old post from 2007 by Rose on the Forces site but unfortunately the link to the article was dead. However, the opening paragraph was provided;

    “Britain’s oldest and most powerful medical college today calls on the Government to set a target to eliminate smoking by 2025.

    “Nicotine products, which deliver the drug smokers crave without the harm caused by tobacco, should be made as appealing and attractive as possible. That means devising new nicotine inhalers which deliver the “hit” obtained from a cigarette, and reducing the price of all nicotine products. A regulatory authority should be established, the report says, and “low-cost, single-day nicotine packs” should be available from shops everywhere”
    http://www.independent.co.uk/life-style … 22480.html

    I’ve noticed quite a few adverts on tv and in magazines glamourising vaping and extolling its virtues over smoking, so I would say the Bernay’s style propaganda is being rolled out and everything’s going according to plan for the antis in their minds. They are seriously planning an endgame for tobacco within the next decade, so belt up for an interesting ride!

    As for the tobacco companies, are they not just controlled opposition? From what I read on this pro-smoking site it seems the case;

    “In fact, the anti-smoking conspiracy began over a century ago. Skull & Bones ring-led the creation of the American Tobacco Trust, to gather all the companies under anti-smoker control. But they knew that they couldn’t just take over the tobacco companies and shut them down, because others would simply enter the field. So, they created and built up enemies to persecute tobacco, particularly the American Cancer Society, the Harvard School of Public Health, and the American Heart Association, and used these as proxies to create and control the federal health establishment (the National Institutes of Health and National Cancer Institute, et al.) to manufacture fraudulent pseudo-science to deceive the public at taxpayer expense. The anti-smoker-controlled tobacco companies merely put up a phony pretense of fighting the anti-smoker-controlled “health” lobbies, and purposely throw lawsuits (that is, to those brought by the “right” plaintiffs) in order to financially intimidate potential entrants into the tobacco industry. And, Philip Morris/Altria has been a particular flagrant example of conspiratorial control. The anti-smokers used it to scoop up the remaining companies that hadn’t been sucked into the Tobacco Trust, and they built it up to serve as the lead Judas Goat to betray the rest. J. Russell Forgan, who later wrote the act creating the Central Intelligence Agency, began investing Marshall Field 3d’s money in the tobacco industry in the late 1920s, and he led the financing of Philip Morris’s expansion from the 1940s to 1960s, when he specifically recruited institutional investors. From 1960 to 1981, the stepson of the head of the American Cancer Society was on its board of directors!”

    Taken from http://www.smokershistory.com/

    • junican Says:

      So I guess what you are saying is that TobCon (tobacco control) is already setting up the next ’cause’ for which it can fight – anti-ecigs – in due course. Clever buggers! So the likes of Chapman and Glantz are now out of the loop, having gone off too soon.
      The convoluted intrigues are a bit difficult because the possible variations within the intrigues are almost infinite. I prefer a simpler description, being that TobComs want to perpetuate their money-making business and TobCon wants to perpetuate the life of its cash-cow. The two objectives can coexist without some sort of conspiracy between them.
      Having said that, the conspiracies you suggest are entirely possible.

  3. Ed Says:

    lol, I wish I could highlight the text;

    ” A regulatory authority should be established, the report says, and “low-cost, single-day nicotine packs” should be available from shops everywhere”

    They’ll attempt to morph into the regulatory body alongside big pharma, I’ll bet, or something along those lines.

    I had an interesting find last night when doing some research on a tobacco company which went into detail about the tobacco wars in the UK at the turn of the last century. It seemed incredible the sums involved to win over the retail industry, but in the end it was the British consumer who viewed the cheaper tobacco with suspicion that kept the first American assault at bay.

    http://www.jstor.org/stable/25119262?seq=1#page_scan_tab_contents

    http://www.jstor.org/stable/pdf/25119262.pdf?acceptTC=true

    • junican Says:

      I’m not sure what you mean by ‘highlight the text’. If you mean make bold, then it is easy to do. Immediately in front of the text that you want to make bold, put the symbol “less than” – < then put the letter ‘b’ then put the symbol “greater than” – >. Leave no spaces between the symbols or the text. Immediately after the piece of text which you want to make bold, put the symbols “less than” – leaving no spaces. Do NOT leave spaces between the groups of symbols and the text you wish to make bold.

      ” A regulatory authority should be established”, the report says, and “low-cost, single-day nicotine packs” should be available from shops everywhere”

      The sudden and unexpected rise in the popularity of ecigs has thrown TobCon into disarray and panic. We could see it like this:

      TobCon and TobComs are happy with the jousting which can go on for years and years. This is a happy arrangement. Along come ecigs. TobComs can take advantage of them financially, but TobCon cannot. Therefore, TobCon must resist them. How to do so? Why, obvious is it not? In the EU, get a directive. In the USA, get FDA regulation.
      Stink, stink, stink.

      • junican Says:

        Ed.
        Ignore the first para. I have been trying to edit it, but WordPress is not playing out tonight.

  4. Ed Says:

    “The convoluted intrigues are a bit difficult because the possible variations within the intrigues are almost infinite.”

    I’ll say! I kind of get the feeling that on some levels the fighting is rigged. It reminds me of the old wrestling matches on tv where they are deadly enemies in the ring but after the fight they go out for a meal and a drink together.

    If the 2025 date is their aim for outlawing tobacco, you can bet your life that tobcon will still be on the gravy train in some form or another. I don’t think the tobacco companies would care a jot about prohibition as they could easily diversify. Pharming is extremely lucrative and tobacco is an ideal plant to manipulate, plus from the viewpoint that cannabis will be legalised they (and big pharma) will no doubt eventually jump on that bandwagon too!

    http://www.thestreet.com/story/13119107/1/big-pharma-and-tobacco-companies-will-benefit-from-cannabis-boom.html

    • junican Says:

      I remember the choreographed wrestling matches on TV.

      Big Pharma and Big Tobacco need to be able to mass-produce to make money. I’m a bit surprised that Big Tobacco did not go into the business of producing nicotine patches, gum and inhalers themselves ages ago. Come to think about it, I think I saw somewhere that some tobacco companies have shares in Big Pharma companies. It would not surprise me one bit if there was not collusion.

      • michaeljmcfadden Says:

        ” I’m a bit surprised that Big Tobacco did not go into the business of producing nicotine patches, gum and inhalers themselves ages ago.”

        Patches and inhalers would have immediately been THOROUGHLY jumped on by Antis as being “addictive drug products,” and would certainly never have been picked up as an enjoyable alternative to cigarette smoking. Remember that BigT has tried several variations of “almost vaping” over the past thirty years: “Accord” “Revel??” “Premier??” — things that tried heating the tobacco instead of burning it etc. — and tried them out in test markets. Smokers didn’t like them. Dunno what would have happened if they’d made the full jump to vaping by buying out the guy in China and pouring their research scientists onto improving it, but my guess is the Antis would have instantly brought the same kind of “addictive drug product” clampdown on them — and they never would have been picked up by the popular culture since they were from “Evil Big Tobacco.”

        And gum? Heh… you can IMAGINE the field day the Antis would have had with BigT and children’s bubble gum! Of course the Antis go into schools and hand it out to anyone who wants to get a good buzz … or poison themselves: See: http://www.dailymail.co.uk/news/article-1200918/Boy-14-collapses-overdosing-nicotine-chewing-gum-handed-school.html Can you even BEGIN to imagine the uproar if RJR or PM, even under the banner of “helping kids quit smoking,” had gone into a school and had that happen? The feds probably would have had to build a whole new prison complex!

        Snus, being almost the same as traditional chewing tobacco (which has long been popular in the backwoods of North America), caught on a bit, particularly (and inexplicably?) in Norway??? Maybe it was actually a Norwegian invention (in the same way that vaping was a Chinese one) that just never had a chance to spread?? When did the Euros first clamp down on it? Anyone know if it has a long history or a short one?

        😕
        MJM

      • junican Says:

        Sweden, MJM. The EU wide ban on snus (with the exception of Sweden) is incomprehensible, given the long-term use of snus in Sweden and the reduced rate of LC there. Again, we see evidence of corruption – intellectual if not financial.
        At a guess, I think that the ban on snus other than in Sweden arrived about the same time as the first ‘tobacco directive’. Sweden was the only country in the EU where snus was very popular, which was why Sweden was excepted. What this shows is that the EU anti-tobacco drive in entirely idealogical.

      • michaeljmcfadden Says:

        Sweden! Whoops! Sorry! :> My naps during high school geography classes once again come back to haunt my life….

        It would still be interesting to know why however. Did some entrepreneur in Sweden simply come up with the idea of putting chewing tobacco in little packets to avoid the spitting/fuss of chew tobacco, and then market the hell out of it? Did some early antismoking doctor invent it as an alternative for patients that were afflicted with severe lung problems? Did some Swedish monarch sally forth on an ambitious program of beheading smokers and chewers and the unobtrusive snus emerged as a way to keep one’s head on one’s shoulders while still enjoying tobacco?

        My guess is that Chris Snowdon may know… heck it’s probably somewhere within VGIF or “The Art of Suppression” and I’ve just forgotten it!

        Ahhhh welll… so much data, so few brain cells. My tween-the-ears hard drive is overloaded!

        – MJM

  5. Ed Says:

    Ah the html worked! 🙂 Thanks.

  6. junican Says:

    MJM

    Snus in Sweden:

    http://en.wikipedia.org/wiki/Snus

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